On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-07-1119.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
In this appeal, we review a Law Division order that admitted defendant, Karen Binder, into the Pre-Trial Intervention (PTI) Program over the objection of the Middlesex County Prosecutor. The judge's conclusion that the prosecutor rejected defendant's application solely because she refused to provide a urine sample is unsupported by the record before us and ignores the six statutory factors on which the State legitimately relied. We reverse.
On July 11, 2007, a Middlesex County grand jury returned an indictment charging defendant with two counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a). The indictment alleged that while serving as a teacher at a public high school, defendant sent "numerous sexually explicit text messages" to two high school students, J.B. and N.B.
The State's investigation revealed that after sending J.B. a text message saying "I need some dick," defendant asked J.B., who was sixteen years old, to take pictures of his penis and send them to her, which he did. N.B., age seventeen, asserted that in a two-day period, defendant sent him over 100 text messages, including one in which she discussed "do[ing] the dirty" with N.B., and proposed to have sex with N.B.'s brother and father. In another text message, she told N.B. that "if u don't like ur girl to suck ur dick, then ur a homo." Although neither J.B. nor N.B. was a student of defendant, the text messages were sent during school hours and other students became aware of them. The State's investigation also revealed an incident in the school cafeteria when defendant was heard asking three boys how big their penises were.
On March 28, 2008, defendant applied for entry into PTI. Six weeks later, the criminal division manager wrote to the Prosecutor's Office recommending that defendant's application be rejected. On May 22, 2008, the Prosecutor's Office likewise rejected defendant's application for PTI. The State's rejection letter relied upon six statutory factors: "[t]he nature of the offense," N.J.S.A. 2C:43-12(e)(1); "[t]he facts of the case," N.J.S.A. 2C:43-12(e)(2); "[t]he motivation and age of the defendant," N.J.S.A. 2C:43-12(e)(3); "[t]he needs and interests of the victim and society," N.J.S.A. 2C:43-12(e)(7); "[w]hether . . . the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution," N.J.S.A. 2C:43-12(e)(14); and "[w]hether . . . the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program," N.J.S.A. 2C:43-12(3)(17).
In its rejection letter, the State observed that although defendant did not have a criminal record, on the date she submitted her PTI application, she was issued motor vehicle summonses for driving while intoxicated and careless driving. The State also noted that defendant refused to provide the urine sample that is part of the PTI application process, from which the State concluded the specimen would likely "have been positive for narcotics usage." Defendant appealed the denial of PTI.
On July 7, 2008, a Law Division judge issued a written decision and confirming order, reversing the prosecutor's rejection of defendant's PTI application, and finding that the prosecutor's decision was the result of a patent and gross abuse of discretion. The judge reasoned:
In this case, the defendant met her burden of demonstrating that the Prosecutor's decision to reject her from Pre-Trial Intervention was the result of patent and gross abuse of discretion. The court finds that the Prosecutor's decision to deny defendant entry into the program was based on an irrelevant and inappropriate factor, which was [defendant's] refusal to submit to a urinalysis. [Defendant's] refusal to submit to a urinalysis should not have been the deciding factor in rejecting [her] from PTI and as such, it is an abuse of discretion.
. . . Precluding the defendant from entering the Program will subvert the goals of Pre-Trial Intervention. This Program was designed to provide the most effective method of dealing with offenses while alleviating the overburdened criminal calendar. In this case, the defendant has no prior criminal record. Additionally, the court finds that the best way of dealing with the defendant's behavior is through intensive counseling and supervision rather than through imprisonment. Also, it is important to note that although [defendant] was charged with the crime of Official Misconduct, her alleged actions, although undoubtedly inappropriate, may not rise to the level of Official Misconduct. Neither of the students were students of the defendant. The text messages occurred outside the school day and the relationship between the defendant and the students did not arise out of [defendant's] duties as ...